Prenups I: The Emperor’s Waiver has no Close – Part 1 – Siluk

Author's note – This subject involves very emotional and very complex Halachic issues. I am not a dayan or a posek but I strongly stand behind the Halachic corollaries that I present and believe them to be worthy of serious Halachic debate.

The laws of the Torah are longer than the Earth and wider than the sea (Iyov 11:9). No amount of research on these Halachic topics is sufficient. The Halachic arguments presented here are subject to differing interpretations of the Poskim, errors, and oversights. In addition, some concepts require more detailed explanation than can be fit into even a lengthy essay and may not be sufficiently clear. I welcome all respectful comments and questions.

Ever since the dawn of time (or Mattan Torah), man has pursued a never-ending quest to develop two specific mechanisms:

·         A perpetual motion machine

·         A valid Halachic formula to avert agunos and siruvei gittin once and for all.

Both of these quests have proven to be impossible; the former due to the laws of physics and the latter due to the laws of Shulchan Aruch.

Additionally, in an earlier post I wrote another reason why a wholesale hetter-agunah mechanism will never come about. HKBH does not want it to. The logical explanation for this would be that If marriage can be so easily dissolved, it loses its “staying power” and its sanctity.  So He created a system where getting out of a marriage has to come at a price. For everybody.

This is because HKBH wants marriages to last. He wants the couple to invest in the marriage, to maintain it and nurture it as opposed to neglecting it. He also wants people to have the proper goals in mind when they look to get married which will help ensure that they get married to the right people. He wants us to take it seriously.

Of course HKBH doesn’t want recalcitrance, either, but He gives all human beings free will to choose between right and wrong.

Despite the impossibility in both cases, people haven’t stopped trying. And once in a while somebody screams “Eureka!” – I have found it – only to see it ultimately debunked.

In the case of agunos and siruvei gittin, we know the “usual suspects” – hafkaas kiddushin, get zikui, and t’nayim.  Although some of these mechanisms may be applicable in exceptional instances, they never were and never will be approved for commercial use.

Undaunted, the “free-the-agunos” askanim of today, sponsored by the Rabbinical Council of America (RCA) and its judicial branch, Beis Din of America (BDA), are trying to peddle another “solution” – the prenuptial agreements.

The Halachic issues involved have turned it into a very convoluted document and, accordingly, a very controversial one. This is evidenced by the strange kim li clause at the end of the document. Without too much detail, this clause states that the parties agree to accept whatever halachic opinions are required to make this work, even if they are not the prevailing majority opinions. This, by itself indicates that the BDA acknowledges that the validity of the prenup depends on some off-Broadway opinions.

I am not one to say whether it is valid or invalid but I do think it is a stroke of genius. This is because they developed a two-phase agreement. Phase one is that the parties are granting the BDA itself exclusive authority to arbitrate their dispute. Phase two is that (ex-)husband-to-be commits himself to the financial arrangement outlined in the agreement. Since the BDA are the primary backers of the Halachic validity of the agreement and they are also arbitrating the dispute, they will have no problem upholding the agreement at their discretion – with the help of the kim li clause.

To quote chief architect Rabbi Mordechai Willig, Shlita – “a belt and suspenders!”

The more chareidi batei din, who don’t work on kim li’s of minority opinions, are not as supportive of this agreement, nor are they as eager to see problem marriages end in divorce (although they certainly do not condone recalcitrance). And many of these poskim have voiced their objections. The overwhelming issue is the question of a forced get (get meuseh) and the lion’s share of the literature debates this issue. As I look at this, I see some other less prominent Halachic issues that need to be addressed. And these are what I want to discuss.

The Halachic controversy can only be understood from a point of knowledge. So let’s see how this mechanism is supposed to work.

The initial model for the current day BDA prenup was the concept of the husband declaring a self-imposed penalty (knas) for not issuing a get. Since this penalty is self-imposed, his agreement to divorce would not be considered a forced get (get meuseh).

This idea goes way back and is discussed openly in the Rema in Shulchan Aruch Even HaEzer 134:4. The Rema personally does not see a problem with this system but he notes that there are those who don’t approve (Teshuvos HaRashba). Accordingly, he says it should not be done l’chatchila and even if it is done, the knas should be waived. He rules that despite this, if this system was used the get is still valid, but in his closing words, he throws in some scary language that the get is valid “since initially he was not forced to do this…”

This implies that if it is possible to claim in any given case that the initial “self-imposed” knas was forced, even the Rema might invalidate the get!

Because of all of these problems, it was understood that the right-wing Rabbinic world will not approve of a prenup based on the knas concept to be implemented l’chatchila. We must stay out of Knas-land.

Undaunted, the framers of the prenups created a new domain which seems to be advocated by the Toras Gittin (ibid.):  Mezonos-land!

The Mezonos-land method works as follows. In every standard marriage the husband has rights (benefits from his wife) and obligations to the wife (benefits from the husband).  Chazal defined and arranged these rights and obligations in a way to create a balance where some of the benefits given to the husband balance those awarded to the wife.

The idea of this prenup is that the husband agrees of his own volition that, in case of marital strife, he will uphold and even increase his financial obligations to his wife and at the same time renounce his rights to financial benefits from his wife. Since all he is doing is to uphold his marital obligations, even though he is now creating an imbalance which puts upon him financial duress, this is not construed as a Knas – at least, in the eyes of the Toras Gittin.

To understand the issues of the prenup, we need to assess the validity of both segments – (1) boosting his obligations and (2) renouncing his benefits. In this post, I will only deal with the renouncing part – the “Waiver” - which has gotten a back seat look from the Poskim. But I think some aspects were overlooked and, hence, it is the more problematic issue. Indeed, Rabbi Mordechai Willig, Shlita, in his famous shiur, noted that this segment is “very sticky”. From his brief description, I don’t think he adequately demonstrated how sticky it is. (B’mechilas kvodo, I am not convinced that he grasped it himself).

As stated earlier, in a situation where the wife has a significant income, the waiver is vitally important to create the needed imbalance. Without it, the rules of Mezonos-land dictate that as long as he covers the support, he can collect her earnings. If her earnings are substantial they can offset the augmented support. If this collection is not waived, the force of the agreement is neutralized. So this waiver is a crucial ingredient.

However, for the ingredient to work properly, the waiver would need to be effectual and irrevocable. And herein lies the rub. It is difficult to make this waiver effectual and – as far as I can see – virtually impossible to make it irrevocable.

Let’s discuss why.

In general people earn money through one or more of three basic methods:

·         Dividends

·         Profits

·         Wages

Dividends refer to the yields of property holdings. This would include rental income from real estate, dividends from stocks, and proceeds from other investments. In the Talmudic agricultural society, it refers to the actual yields of produce from fields or the offspring of livestock. In Talmudic language this is called “peiros nechasim”.

Profits are the earnings from buying and selling merchandise or providing self-employed services. In Talmudic terms, we can call this “iska” (business).

Wages are salaries from hired labor. In Modern Hebrew it is called “maskoret”. Also “schar tircha” or “schar pe’ula”.

For our purposes, the first category – Dividends - stands alone as “peiros” (Property rights) and the second two categories – Profits and Wages - can be combined together to be called “maaseh yedayim” (Earnings).

In today’s world, most people obtain their primary income from maaseh yadayim. Some people have investments in stocks and/or property holdings but usually it is stored in savings and not used for income. More important, very few women have any property when they are first married.

We noted that according to the prenup, the husband will renounce some financial rights that he gets from his wife. What rights does a husband get? They are the two kinds that we just described: Property rights and earnings. A woman basically has no property rights from her husband, meaning she has no rights to any property that the husband brings into the marriage except that she has an automatic lien on his property for her Kesuba and other marital rights (mezonos).

These two rights of the husband - Property rights and Earnings - have different rules. Since the husband is the one renouncing some of his rights in the BDA prenup, we need to discuss both of these.

To review the Property rights, by Torah law, when a couple marries, all property that belongs to the husband remains his. Likewise for what he acquires in his own name over the course of the marriage. As for the wife’s properties, things are a bit different. Upon the commencement of the marriage, the property remains under the official ownership of the wife, but, by decree of Chazal, the husband is granted partial rights to the property which are:

·         He can hold her back from selling the property to somebody else.

·         He is entitled to personal consumption of all proceeds from the property in terms of produce or revenues.

·         He inherits the land to be his own upon her demise – if they are still married.  

These rights are looked upon as if the husband has a physical stake in the property. As if he is a part owner. Since the property is tangible, this “stake” is tangible. Thus, at the conclusion of the chuppah, if the woman has any properties, the husband makes a tangible acquisition.

Chazal call this “nichsei malug”.

Incidentally, this also applies to properties that the woman acquires in the course of the marriage through inheritance or as a gift.

Let’s suppose that the wife does not like this arrangement. She does not want her new husband to get a tangible stake in her property. And let’s say the husband agrees to this setup (like she won’t otherwise agree to marry him. This is very common, if not standard, by second marriages where there are children from the first one. ) How do they circumvent the decree of chazal which takes effect automatically at the moment of nissuin?

The simple thing to suggest is: let him be mochel (waive) his rights. Alas, Halacha is not so simple.

The concept of “mochel” cannot apply here. According to most poskim, mechila is like giving a gift. It only applies to a monetary obligation from one to another.

In our case, nobody is obligated to give anything to the other. Chazal are in control and they determine that he automatically gets the property together with the girl. Before the chuppa, it is not yet his and she has no monetary obligations to him that he can be mochel. Even during the betrothal she has no obligations to him. After the chuppa, the property [rights] automatically land in his pocket courtesy of Chazal. At this stage, he cannot be mochel. He has already taken possession. One cannot be mochel what one has in his pocket. It won’t move out by itself.

For this reason, we need to devise a different concept. It is called “Siluk” and it means abdication – not waiving. Although there is no obligation from her to enable him to be mochel, he can choose to be mesalek (abdicate or renounce) his ownership of the property before or after he receives it via Chazal. But there is a difference between before and after.

Before he receives it, all he has to do is recite (or write) that he wants nothing to do with the property. Return to Sender.  Once he receives it (at the conclusion of the chuppa), he cannot do this by a mere statement (even in writing). His stake in the property has already been deposited into his pocket and it’s not going to leave on its own. He needs to do a kinyan with his wife to actively transfer his stake back to her.

Hence, Chazal delineate different rules for three specific periods of time:

·       Before the entire marriage, one cannot do any siluk because he has no stake in the property even in potential. This is like calling your Post Office to refuse a package that has not arrived there at all.

·       After the Kiddushin and before the nissuin, she is already his “wife” but he does not receive his stake in her properties until he brings her in (kenisa=chuppa=sheva brachos ) when the benefits and responsibilities of the kesuba take effect. Still, since it is understood that he is destined to acquire this stake in the property, he can block it with a statement so as not to acquire it in the first place. This is like receiving a notice in your mailbox that there is a package waiting for you to pick up at the Post Office. You can simply call up the PO and tell them that you are refusing the package and to return it to sender.

·       After the nissuin one has already accepted delivery of the package and calling the PO won’t accomplish anything. The only way to return it to sender is to replace the brown paper, go down to the PO, pay postage again and send it back.

All this is the subject matter of the ninth perek of Kesubos and is spelled out in Even HaEzer 92. These Halachos apply exclusively to the nichsei malug of the woman. They do not apply to the maaseh yadayim!

A few more important details about a siluk are in order.

From the description of the gemara and Shulchan Aruch, a siluk is an on the spot action that takes effect immediately in the here and now. The groom recites or writes his siluk sometime during the kiddushin period and his acquisition is immediately “blocked”. If after the marriage, he must do it with a kinyan and it takes effect immediately. There is no discussion in the gemara or Shulchan Aruch about a situation where the groom recites that a siluk will take place at a future time but not now (and not for the interim). Is such a thing possible?

Presumably not.     

It definitely cannot work with a mere declaration because a declaration is only valid if he has not yet accepted delivery on the package. Once he has claimed the package, which he does in the interim,  he will need to do a kinyan.

Can he do a kinyan now that will take effect later?

The only kinyan one can make “up front” is a kinyan sudar and, in general, a kinyan sudar done today cannot be delayed until tomorrow because tomorrow the sudar is back to its owner (Choshen Mishpat 195:5).

How about we do a kinyan sudar now and we state that when the circumstances call for the siluk, it will take effect retroactively from now (me’achshav)?

Here we walk on thin ice. Even though such a thing is effective for a simple purchase or a self-imposed obligation (hitchayvut), it is very difficult to say that this can work with a siluk. Why? Because me’achshav is not a magic wand. It doesn’t make a delayed kinyan work later hocus pocus. It actually means that we retroactively determine that the transfer of ownership takes effect now. Like now!

Let’s assume a 12 month delay me’achshav. In the case of a purchase, after 12 months, me’achshav determines that the new owner has been the actual owner for the past 12 months. He has held the rights to all the benefits of ownership. If the original owner was using the item in the interim, he is liable to the new owner for its use (unless the new owner is mochel).

If me’achshav will work with a siluk, the trigger point – which may be many years later - will determine retroactively that the siluk took effect from the day (and time) of the kinyan. The husband will be liable to his wife for all the proceeds that he took control of from that time. Thus, a siluk will only work if he is “meirim yadayim” (hands off) in the interim or if he settles with his wife on the proceeds of the interim period. But if he displays that he has no intention of honoring the siluk retroactively, he is megalah daas that he does not want the siluk to take effect until the trigger point. Whereupon, he will need to make a new kinyan at that time to effect the siluk.

You can’t be mesalek from your cake and eat it first!

What if he makes a written agreement now to do a kinyan when it is called for?

No problem with that, but until he does the kinyan, there is no siluk. If he is an honorable person he needs to keep his word but nobody can force him to. So, until the time comes and he actually makes a kinyan, no one can stop him from backing out of the agreement.

What emerges is that in all the earlier suggestions, the siluk is not effectual and in the final suggestion, the pledge to do a siluk in not irrevocable.

So now that we know all of this, let’s go and analyze the BDA prenup.

The BDA wants to put the Toras Gittin’s suggestion in action. This is to have the groom agree now that, in a future time when appropriate, he will increase his mezonos obligation to his wife and at the same time to renounce his financial rights. (Note- Toras Gittin makes no mention of making an agreement now for the future. This is critically important and will be discussed in a future post.) And so they word their prenup as follows:

I hereby now (me’achshav) obligate myself to support my Wife-to-Be from the date …Furthermore, I waive my halakhic rights to my wife’s earnings for the period that she is entitled to the above-stipulated sum, and I recite that I shall be deemed to have repeated this waiver at the time of our wedding. I acknowledge that I have now (me’achshav) effected the above obligation by means of a kinyan (formal Jewish transaction) in an esteemed (chashuv) Beth Din as prescribed by Jewish law. 

Which halakhic rights is this referring to and what makes this waiver take effect?

Are we talking about the maaseh yadayim or the peiros, or both?

Well, I am certain that Rabbi Willig, Shlita wants to cover both bases but it looks like he is weaving shaatnez – wool and linen mixed together.

The term “my wife’s earnings” and “waive” (as opposed to “abdicate from” or “renounce”) certainly indicate that he is renouncing the maaseh yadayim.  Maaseh yadayim does require mechila (we will discuss this in the next post) and, besides, peiros cannot be called “my wife’s earnings” because they are automatically his as soon as they come into existence. Yet, the phrase “and I recite that I shall be deemed to have repeated this waiver at the time of our wedding” indicates otherwise. Why are those words there?

Rabbi Willig explains himself (71:00):  

If you look in Kesubos 83 it says that you can’t do that (waive his rights) before the eirusin …

Kesubos 83?? Isn’t that talking about siluk from nichsei malug?

Perhaps it doesn’t matter and this rule of siluk applies to maaseh yadayim as well?

I cannot discuss maaseh yadayim in this post, but I will give you a sneak preview. My perspective is that, for maaseh yadayim, it does not help to recite this not before the wedding and not “at the time of our wedding”. It is only effective at the time of the actual mechila. I will explain this in the ensuing post. So, if it refers to maaseh yadayim it should read: “and I recite that I shall be deemed to have repeated this waiver at the time of our separation (or notification)”.

For the moment, let’s pretend that we are indeed discussing peiros – the proceeds from nichsei malug. Is this clause effective?

Well, I already wrote that, if this is the case, it should read, “I abdicate myself from the proceeds of my wife’s pre-marital properties…” instead of what it says. He cannot waive the peiros that automatically land in his pocket. (It’s like if the Israeli government gives you Child allowance through automatic electronic direct deposit, you can be mochel it all you want but it is still sitting in your bank account.)

Aside from this, it is not bound to be too practical because most women do not have nichsei malug.  If the couple earn their living from renting properties the properties were probably jointly bought in the course of their marriage. In this case, he is a part owner on the keren – the principle - of the property and he is certainly not abdicating from that. Same goes for stock shares.

But, more important, as we discussed, once he took possession of his stake in the nichsei malug, he cannot relinquish them without making a kinyan with his wife at the time he wants to relinquish it. If he is a recalcitrant, good luck with that.

Can the kinyan that he made at the chosson tish take effect retroactively at the time of separation to facilitate a siluk all the way back to the day of the wedding (me’achshav)?

We must say that either it doesn’t at all because he was megalah daas all these years that he had no intention of effecting a siluk from the time of the wedding (and this negates the me’achshav), or, possibly, we can say that it does take effect (me’achshav is not negated) and he is now liable for all the proceeds that he took for himself for all this time.

I think that in order to make the latter viewpoint valid, this ramification would have to be expressly spelled out in the prenup agreement. Moreover, it is very unreasonable to promote an agreement which puts a young groom at such risk and likewise more unreasonable to expect him to want to sign it and it is criminal to demand him to sign it. Remember, the terms of the prenup are independent of whether he is recalcitrant or not.

Incidentally, Rabbi Willig’s assertion that the wife is not required to surrender a “sophisticated” income to her husband (based on a shita of the Bach) might apply to maaseh yadayim but it certainly does not apply for the proceeds of nichsei  malug. Whatever it yields is all his. So there could be a lot to give back for a retroactive siluk.

For all these reasons, it is abundantly clear that the waiver in the prenup has no effect on the husband’s rights to the proceeds of the wife’s personal properties. The intent of the agreement must be relating to the maaseh yadayim. (Note that the Toras Gittin expressly mentions maaseh yadayim  and seems to ignore peiros nichsei malug.)

So now we need to examine if it this “waiver” is effective for the maaseh yadayim. But this is a post in itself.

Stay tuned for Part 2 of…

...The Emperor’s Waiver has no Close.